© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the official source for authoritative text.
CTHHCA
Rogers v R [1994] HCA 42;
[1994] HCA 42
High Court of Australia|1994-09-28|Before: Mason CJ
View original sourceAt a glance
Source factsCourt
High Court of Australia
Source
Original judgment source is linked above.
Judgment (1162 paragraphs)
[1]the application of the doctrine of issue estoppel in criminal cases by
[2]7. The starting point is the judgment of Dixon J in Wilkes ((28)
[3]
" Whilst there is not a great deal of authority upon the
subject, it appears to me that there is nothing wrong in
the view that there is an issue estoppel, if it appears by
record of itself or as explained by proper evidence, that
the same point was determined in favour of a prisoner in
a previous criminal trial which is brought in issue on a
second criminal trial of the same prisoner. ... Such a
question must rarely arise because the conditions can
seldom be fulfilled which are necessary before an issue
estoppel in favour of a prisoner and against the Crown can
occur. There must be a prior proceeding determined against
the Crown necessarily involving an issue which again arises
in a subsequent proceeding by the Crown against the same
prisoner. The allegation of the Crown in the subsequent
proceeding must itself be inconsistent with the acquittal
of the prisoner in the previous proceeding. But if such
a condition of affairs arises I see no reason why the
ordinary rules of issue estoppel should not apply. Such
rules are not to be confused with those of res judicata,
which in criminal proceedings are expressed in the pleas of
autrefois acquit and autrefois convict. They are pleas
which are concerned with the judicial determination of an
alleged criminal liability and in the case of conviction
with the substitution of a new liability. Issue estoppel
is concerned with the judicial establishment of a
proposition of law or fact between parties. It depends
upon well-known doctrines which control the relitigation of
issues which are settled by prior litigation."
[4]His Honour clearly addressed a question that went beyond the operation
[5]of the principle against double jeopardy and the operation of the
[6]doctrine of res judicata and its manifestation in the pleas of
[7]autrefois convict and autrefois acquit ((29) Arguably, autrefois
[8]acquit falls into the category of issue estoppel rather than into the
[9]category of res judicata: see per Lord Pearce in Connelly v. Director
[10]of Public Prosecutions (1964) AC at 1365. But categorization is
[11]immaterial to the question to be decided in this appeal. Mason J
[12]regarded autrefois acquit as a manifestation of res judicata in Storey
[13]problem of re-litigating issues that had already been finally decided
[14]between the Crown and an accused. It was the determination of issues,
[15]not the effect of judgments, that he was discussing. He was not
[16]purporting to affect the pleas of autrefois convict and autrefois
[17]acquit which relate directly to criminal liability for conduct
[18](although, as Mraz (No.2) illustrates, the application of the doctrine
[19]of issue estoppel in criminal cases may protect an accused against
[20]double jeopardy in respect of the same conduct charged in successive
[21]8. Dixon J defined the essence of the doctrine of issue estoppel in
[23]
" A judicial determination directly involving an issue of
fact or of law disposes once for all of the issue, so that
it cannot afterwards be raised between the same parties or
their privies."
[24]Issue estoppel is thus concerned with the determination of issues.
[25]Res judicata, on the other hand, is concerned with the remedy or
[26]relief granted in a given set of circumstances. His Honour pointed to
[27]the distinction in Blair v. Curran ((31) ibid at 532.):
[28]
"The distinction between res judicata and issue-estoppel is
that in the first the very right or cause of action claimed
or put in suit has in the former proceedings passed into
judgment, so that it is merged and has no longer an
independent existence, while in the second, for the purpose
of some other claim or cause of action, a state of fact or
law is alleged or denied the existence of which is a matter
necessarily decided by the prior judgment, decree or
order."
[29]9. Although merger provides a distinction between res judicata and
[30]issue estoppel, both doctrines bind the parties and their privies to
[31]accept a final judicial decision of a question between the parties as
[33]at 724).). The rule is expressed in the maxim res judicata pro
[34]veritate accipitur. The parties and their privies are bound by the
[35]judgment or order into which any cause of action or right to relief has
[36]passed (res judicata) and by the determination of any issue which was
[37]the necessary legal justification or foundation for the prior decision
[38](issue estoppel). In Wilkes, Dixon J was speaking of the
[39]determination of the same issue in successive criminal trials. He was
[40]not speaking of the verdicts or judgments that might follow successive
[41]prosecutions based on the same set of circumstances.
[42]10. Issue estoppel extends not only to findings of fact or decisions
[43]on points of law that are expressly declared in a judgment or order
[44]but to any "matter which it was necessary to decide, and which was
[45]actually decided, as the groundwork of the decision itself, though not
[46]then directly the point at issue" ((33) Reg. v. Hartington Middle
[47]Quarter (1855) 4 El and Bl 780 at 794 [1855] EngR 264; (119 ER 288 at 293); Blair v.
[48]Curran (1939) 62 CLR at 532.). But issue estoppel does not extend to
[49]findings of fact which, though contested and probative of the ultimate
[50]issue, are not necessary to, or are not the legal foundation of, the
[51]decision made ((34) Blair v. Curran (1939) 62 CLR at 531-533.).
[52]Starke J confined the scope of the doctrine in these terms ((35) ibid
[53]at 510; see also Brewer v. Brewer [1953] HCA 19; (1953) 88 CLR 1 at 14-16.):
[54]
"a judgment is conclusive evidence not merely of the facts
directly decided but of those facts which are necessary
steps to the decision - so cardinal to it that without them
it cannot stand". (Emphasis added.)
[55]Being so confined, the doctrine is not accorded a scope broader than
[56]the maxim res judicata pro veritate accipitur demands. Subsequent
[57]decisions can be made untrammelled by the prior determination provided
[58]they are not necessarily inconsistent with it. In Wilkes, Dixon J
[59]was alive to the limitations on the operation of the doctrine of issue
[60]estoppel and accurately anticipated that the occasions for applying
[61]the doctrine in the context of jury verdicts would be extremely
[62]confined. But that is not to deny either the applicability or the
[63]utility of the doctrine to criminal cases. In Mraz (No.2) there was
[64]an occasion to apply the doctrine to a finding implicit in a verdict
[65]and the present case offers an occasion to apply it to a ruling made
[66]on a voir dire. The utility of applying the doctrine is another
[67]matter, but it is convenient to leave that topic until we examine Mraz
[68]11. In Mraz (No.2), this Court unanimously allowed an appeal against
[69]a conviction for rape by applying the doctrine of issue estoppel to
[70]a verdict of manslaughter returned against Mraz on a charge of
[71]felony-murder. The felony alleged was rape and the proposition
[72]on which murder was charged was that Mraz caused the death of the
[73]deceased woman during or immediately after the commission of the rape.
[74]The jury's verdict of manslaughter negated that proposition. The
[75]
"On a subsequent indictment the Crown would be precluded
upon any issue which could not be found consistently with
the negative of the proposition. For the Crown is as
much precluded by an estoppel by judgment in criminal
proceedings as is a subject in civil proceedings: R. v.
Wilkes ((37) (1948) 77 CLR at 518, 519.); Sambasivam v. Public
Prosecutor of Malaya ((38) (1950) AC at 479.)."
[76]It was the rape alleged in the earlier trial with which Mraz was
[77]charged and for which he was convicted in the later trial. By
[78]analysis of the evidence and of the conduct of the earlier trial, the
[79]Court concluded that the jury in that trial had acquitted Mraz of
[80]murder by finding that he was not guilty of the rape of which he was
[81]convicted in the later trial. That finding was not disclosed by the
[82]record of the earlier trial ((39) (1956) 96 CLR at 69.). But a
[83]court, in ascertaining whether a finding has been made on which an
[84]estoppel is raised, is entitled to look not only at the record - often
[85]inscrutable in a criminal case - but also at any material that shows
[86]what issues were raised and decided ((40) per Fullagar J in Jackson
[87]v. Goldsmith [1950] HCA 22; (1950) 81 CLR 446 at 467; see also Gray v. Dalgety and Co.
[88]Ltd. [1916] HCA 35; (1916) 21 CLR 509 at 543; Hoysted v. Federal Commissioner of
[89]Taxation [1921] HCA 56; (1921) 29 CLR 537 at 563; Mraz v. The Queen (No.2) (1956) 96
[90]CLR at 69.). By contrast, when res judicata is raised, the Court is
[91]confined to reference to the record. For this reason I am unable, with
[92]respect, to share the view taken by Mason J in Storey, that Mraz
[93](No.2) is a case of res judicata ((41) Even if one treats the record
[94]in the earlier trial of Mraz as having included the rape as a
[95]particular of the felony-murder, the record was ambiguous as to the
[96]element of the crime of murder of which the jury was not satisfied.).
[97]It was an instance of the application of the doctrine of issue
[98]12. In Humphrys, Lord Hailsham ((42) (1977) AC at 38.) regarded both
[99]Mraz (No.2) and Dixon J's statement in Wilkes as going no further than
[100]saying that double jeopardy precludes the acceptance of a verdict of
[101]guilty inconsistent with a previous verdict of acquittal. That the
[102]principle against double jeopardy has that effect can be accepted but
[103]the problem in Mraz (No.2) was to discover the terms of the previous
[104]verdict; the problem was to discover whether the previous verdict was
[105]based on a finding that Mraz was not guilty of rape and, in the event
[106]of discovering that that was the basis of the verdict, to provide
[107]appropriate relief. That problem was solved by applying the doctrine
[108]of issue estoppel. Lord Hailsham, while insisting that double
[109]jeopardy is "aimed at verdicts rather than issues" ((43) ibid at 40.), could accommodate the problem addressed in Mraz (No.2) only by
[110]allowing that "issues may sometimes be isolated and examined to see
[111]whether there has in fact been a danger of inconsistent verdicts"
[112]((44) ibid.). Once it is found necessary to go behind the meagre
[113]record of a criminal trial in order to ascertain the basis of a
[114]verdict, the applicable doctrine is issue estoppel, not res judicata.
[115]In Humphrys, Viscount Dilhorne ((45) ibid at 18.) regarded Mraz
[116](No.2) as "not very satisfactory" because the conviction for rape in
[117]the later trial would not have been quashed if this Court had been
[118]unable to discover that the verdict in the earlier trial involved a
[119]finding that Mraz was not guilty of rape. His Lordship's reasons were
[120]adopted by Barwick CJ in Storey ((46) (1978) 140 CLR at 373.).
[121]But, with respect, it is hardly a criticism of the doctrine of issue
[122]estoppel that the verdict in a criminal trial usually precludes an
[123]effective application of the doctrine although, infrequently, it is
[124]possible for the court to identify and avert the double jeopardy to
[125]13. If it be right to say that it is not an object of the rule against
[126]double jeopardy to preclude the re-litigation of issues already
[127]finally decided between the Crown and an accused and if the avoidance
[128]of double jeopardy is the only purpose of the law relating to the
[129]effect of a verdict of acquittal, it would be sound legal policy not
[130]to apply the doctrine of issue estoppel in criminal cases. Taking
[131]that view, to introduce the doctrine to the criminal law would be
[132]to produce in some cases the artificiality that troubled Gibbs J
[133]in Storey. But, where successive verdicts can be shown to be
[134]inconsistent in fact though not in form, it would be a reproach to the
[135]criminal law if it were unable to prevent the conviction of a person
[136]for conduct in respect of which that person had been found not to be
[137]guilty. This was the problem in Mraz (No.2). The Court examined a
[138]verdict opaque in form and discovered that it was founded on an
[139]acquittal. That was an application of the doctrine of issue estoppel,
[140]not of the doctrine of res judicata. Although the doctrine of issue
[141]estoppel has not always been distinguished in terms from the doctrine
[142]of res judicata or the principles of double jeopardy, it is a doctrine
[143]14. Why, it must be asked, should the avoidance of re-litigation of
[144]issues not be an object of the criminal law? In Wilkes, Dixon J
[145]thought that it should. For that reason, he thought that there is
[146]"nothing wrong" in the application of the doctrine of issue estoppel
[147]in criminal cases ((47) (1948) 77 CLR at 518.). There is, in my
[148]opinion, greater force in the policy considerations that weighed with
[149]Dixon J than in the contrary view. Indeed, the avoidance of
[150]re-litigation of issues is an object not only of the doctrine of issue
[151]estoppel but also of the doctrine of res judicata in the general law.
[152]The principles underlying the doctrine of res judicata were stated by
[153]Lord Blackburn in Lockyer v. Ferryman ((48) (1877) 2 App Cas 519 at
[154]
"The object of the rule of res judicata is always put upon
two grounds - the one public policy, that it is the
interest of the State that there should be an end of
litigation, and the other, the hardship on the individual,
that he should be vexed twice for the same cause."
[155]In Jackson v. Goldsmith ((49) (1950) 81 CLR at 466.) Fullagar J
[156]attributed the rule as to res judicata to the same principles,
[157]expressed in the Latin maxims interest reipublicae ut sit finis litium
[158]and nemo debet bis vexari pro eadem causa. If the pleas of autrefois
[159]convict and autrefois acquit are true manifestations of res judicata,
[160]the policy that underlies those pleas is not only the avoidance of
[161]double jeopardy but the public interest that there be an end of
[162]litigation. Why should that public interest not be served by the
[163]avoidance of re-litigation of issues in criminal cases? True it is
[164]that the Crown may be able to bring overwhelming evidence on a later
[165]trial though it had suffered an issue to be determined without that
[166]evidence in an earlier trial, but that consideration can be advanced
[167]with equal cogency against the plea of autrefois acquit as it can
[168]15. Of more concern to legal policy is the factor which led Lamer J
[170]draw back from applying the doctrine of issue estoppel to a finding
[171]made on a voir dire, namely, the absence of any appeal. His Lordship
[172]
"Though the voir dire is in a sense autonomous, it is
nevertheless totally dependent upon the main trial for its
appeal process. Let us postulate error on the part of the
judge in determining the admissibility of the statement.
If the statement is wrongly excluded, even through error of
law, but the accused nevertheless convicted, benefit of
the doctrine of res judicata would then be founded upon an
error of law beyond the reach of redress. Indeed, the
Crown has no appeal from that conviction. Similarly, if
the statement is excluded through error of fact, and the
accused acquitted, again the erroneous finding is beyond
the reach of the courts as the Crown's right to appeal is
limited to matters of law."
[173]In this context, it is instructive to consider the judgment of the
[174]Court of Appeal of New Zealand in Bryant v. Collector of Customs ((52)
[175](1984) 1 NZLR 280.). The Court held that a ruling on voir dire
[176]excluding confessional evidence as involuntary concluded the issue of
[177]admissibility in a subsequent trial. Richardson J ((53) ibid at
[178]284.) held that the first ruling "was immediately binding on the Crown
[179]and became final when the verdict of the jury was entered". But in
[180]that case the Crown could have had the ruling reserved for the opinion
[181]of the Court of Appeal and, having failed to do so, the Crown's attempt
[182]to tender the confession in the subsequent trial was regarded as an
[183]
" In turn the Judge's duty at that point was to exercise
the inherent power which any Court of justice must possess
to prevent abuse of its processes and to refuse that
application. Only in that way could he serve the relevant
public policies underlying the doctrine of abuse of process
in this area of the criminal law: that litigation should
settle disputes finally; that an accused should not be
harassed again by the reopening of a central issue on which
he succeeded at the first trial; and that if an unappealed
or unsuccessfully appealed final decision of one Court may
be reopened by another Court any resulting inconsistency
can only bring the administration of justice into
disrepute."
[185]avenue of appeal against interlocutory orders similar to that provided
[186]by the law of New Zealand. For that reason, Bryant is a more
[187]16. However, even in the absence of any avenue of appeal, I would
[188]favour the application of the doctrine of issue estoppel (subject to
[189]a qualification presently to be mentioned) to findings made in the
[190]course of rulings that become final. The policy of the criminal law
[191]has traditionally favoured the limitation of Crown appeals against a
[192]verdict of acquittal ((55) Davern v. Messel [1984] HCA 34; (1984) 155 CLR 21;
[193]Thompson v. Mastertouch T.V. Service Pty. Ltd. (No.3) [1978] FCA 24; (1978) 38 FLR
[194]397; 19 ALR 547; cf. per Starke J in Helton v. Allen [1940] HCA 20; (1940) 63 CLR 691
[195]at 702-703.) and the tenderness shown by the law in this respect
[196]combined with the desirability of finality in litigation justifies the
[197]application of the doctrine of issue estoppel to final rulings in
[198]favour of an accused on voir dire. Although, on a balance of policy
[199]considerations, I would favour the application of the doctrine in
[200]criminal cases, I do so with some misgivings of the kind which weighed
[201]with Lamer J in Duhamel. But at the end of the day, to allow
[202]inconsistent findings to stand either on criminal liability for conduct
[203]or on voluntariness in the making of a confession could only engender
[204]the gravest sense of injustice in an accused person and promote the
[205]notion that a criminal trial is, in significant respects, a lottery.
[206]17. However, there is one objection to the application of the doctrine
[207]of issue estoppel in criminal cases that must be accepted. It is
[208]impossible to treat mutuality as essential to the operation of the
[209]doctrine in criminal law. Although mutuality is a criterion of
[210]applicability of the doctrine in civil litigation ((56) Petrie v.
[211]Nuttall [1856] EngR 103; (1856) 11 Ex 569 (156 ER 957); Caine v. Palace Steam Shipping
[212]Company (1907) 1 KB 670 at 683; (1907) AC 386 at 395.) and has been
[213]held to preclude the acceptance of a conviction as conclusive in
[214]favour of another party in civil proceedings ((57) Hutton v. Ras Steam
[215]Shipping Company Limited (1907) 1 KB 834 at 844.), an issue estoppel
[216]cannot enure for the advantage of the Crown in a criminal trial.
[217]Although there be an identity of parties - the Crown being, in the eye
[218]of the law, the party to a criminal prosecution ((58) Commonwealth
[219]Life Assurance Society Ltd. v. Smith [1938] HCA 2; (1938) 59 CLR 527 at 538.) -
[220]mutuality would run counter to the basic notion that the accused is
[221]entitled to the presumption of innocence until the Crown produces
[222]evidence that satisfies the jury of his guilt beyond reasonable doubt.
[223]As Gibbs J said in Storey ((59) (1978) 140 CLR at 380-381.):
[224]
"It would be contrary to the fundamental principles of the
criminal law that the members of a jury should be obliged
by the decision of another tribunal to bring in a verdict
against an accused person, without themselves being
satisfied that issues which the accused wished to contest
had been proved against him."
[225]It follows that issue estoppel can operate, if at all, only in favour
[226]of an accused person, not against him. Mutuality is, in my respectful
[227]opinion, the only valid objection to the application of the doctrine
[228]in criminal cases ((60) Issue estoppel was applied against an accused
[229]in Reg. v. Hogan (1974) QB 398 but that case was overruled in Humphrys
[230]and rightly so.). If the doctrine is to be either rejected or
[231]modified for application in criminal cases, the better view is that it
[232]be modified. Adoption of the doctrine follows the unwavering line of
[233]authority in this Court before Storey, the views of Stephen ((61)
[234](1978) 140 CLR at 391 agreeing with Aickin J), Murphy ((62) ibid at
[235]413.) and Aickin ((63) ibid at 423.) JJ in that case and, subject
[236]to a modification ((64) Occasioned, it seems, by the explanation which
[237]Jacobs J offers of Mraz (No.2) in Storey: ibid at 407.), the views of
[238]18. The earlier cases in this Court clearly related to final judgments
[239]following verdicts of acquittal. But no distinction can be drawn
[240]between the nature of the questions necessarily determined by a
[241]judgment of acquittal on the one hand and the nature of the questions
[242]necessarily determined by a decision to exclude confessional evidence
[243]on the other. Issue estoppel is a doctrine which is capable of
[244]applying to any kind of issue that has been litigated before and
[245]finally determined by a court of competent jurisdiction. In In re
[246]May ((65) (1885) 28 Ch D 516 at 518.) Brett MR, dismissing an
[247]argument that the doctrine of res judicata applies only where there is
[248]
"The doctrine of res judicata is not a technical doctrine
applicable only to records. It is a very substantial
doctrine, and it is one of the most fundamental doctrines
of all Courts, that there must be an end of litigation, and
that the parties have no right of their own accord, after
having tried a question between them and obtained a
decision of a Court, to start that litigation over again on
precisely the same questions."
[249]If a formal record is unnecessary to raise a plea of res judicata in
[250]the strict sense, a fortiori a record is not needed to raise an issue
[251]estoppel on a finding not expressed in the ultimate decision in the
[252]trial ((66) Hoysted v. Federal Commissioner of Taxation (1921) 29 CLR
[253]19. If there be any distinction between cases in which an issue
[254]estoppel has arisen out of a verdict and judgment of acquittal and the
[255]present case, the distinction must lie in the finality of a judgment
[256]of acquittal and the provisional character of an interlocutory
[257]decision to exclude evidence. A decision that evidence is
[258]inadmissible against an accused is susceptible of recall during the
[259]trial and may, on that account, be regarded as provisional ((67) Reg.
[260]v. Watson (1980) 2 All ER 293.). But whether such a decision be
[261]treated as provisional so long as the trial is proceeding or as final
[262]though subject to recall during the trial, it is certainly a final
[263]decision beyond recall once judgment is entered on a verdict
[264]determining the contested counts in the indictment ((68) Hunter v.
[265]Chief Constable [1981] UKHL 13; (1982) AC 529 at 542; Bryant v. Collector of Customs
[266](1984) 1 NZLR at 284.). In Reg. v. Blair ((69) (1985) 1 NSWLR 584.), the Court of Criminal Appeal of New South Wales held that no issue
[267]estoppel could arise out of a ruling given in an aborted trial. It is
[268]unnecessary to consider whether that case was correctly decided, for
[269]the trial before Judge Phelan was not aborted and the ruling that the
[270]portions of the records of interview relied on by the Crown were
[271]inadmissible was, or became, a final ruling. Whether or not the Crown
[272]is able to appeal against the ruling, the ruling was, in the relevant
[273]sense, final ( (70) Bynoe v. Bank of England (1902) 1 KB 467 at 470.) .
[274]20. In this case, the effect of a verdict and judgment of acquittal is
[275]not in question; the question is as to the effect of a finding, made
[276]for the purposes of a final ruling on admissibility of evidence that
[277]the accused did not voluntarily participate in the taking of records
[278]of interview parts of which were sought to be tendered in the earlier
[279]trial. The difficulty, as Dixon J noted in Blair v. Curran ((71)
[280](1939) 62 CLR at 532-533.), is to distinguish between findings which,
[281]however deliberate and formal, concern only evidentiary facts and
[282]findings which concern facts that are necessarily involved in the
[283]decision as its legal foundation. At the conclusion of the voir dire,
[284]Judge Phelan made his ruling rejecting the relevant confessional
[285]statements. The finding of fact on which that ruling was legally
[286]founded and which was essential to the ruling was that Rogers had not
[287]participated voluntarily in the taking of the records of interview. I
[288]understand that finding to relate to the series of four records of
[289]interview, there being no distinguishing feature as to any one of them.
[290]Either immediately when the ruling was made or later when the ruling
[291]became final, the Crown was estopped from asserting that Rogers had
[292]participated voluntarily in the taking of the records of interview. In
[293]Rogers' forthcoming trial, none of those records of interview can be
[294]admitted in evidence. Unless the Crown adduces further evidence on
[295]counts 1, 4, 6 and 8, Rogers will be entitled to a verdict of acquittal
[296]21. In the Court of Appeal, it seems that the argument on abuse of
[297]process was that the Crown's proposed tendering of confessional
[298]evidence before Judge Kinchington was a collateral attack on the
[299]ruling of Judge Phelan. That was to mistake the nature of the
[300]proposed tender. There is nothing to suggest that the tender was for
[301]any purpose other than proof of the issues in the second trial. The
[302]ruling of Judge Phelan would be left untouched if the Crown succeeded
[303]in having the relevant, and different, parts of the records of
[304]interview admitted in evidence on the second trial.
[305]22. There is no abuse of process in the bona fide prosecution of a
[306]person for a criminal offence ((72) Williams v. Spautz [1992] HCA 34; (1992) 174 CLR
[307]509 at 535.). The tender of evidence that is probative of the offence
[308]charged is not an abuse of process merely because its admissibility is
[309]challenged. If the evidence is rejected, the trial simply proceeds
[310]without it. It may be that the launching of a prosecution without any
[311]admissible evidence to support it would, dependent on the
[312]circumstances, warrant an inference that the prosecution is launched
[313]for some ulterior and improper purpose. If that were so, a stay to
[314]prevent an abuse of process might be called for ((73) See Barton v.
[315]The Queen [1980] HCA 48; (1980) 147 CLR 75 at 96-97. Jago v. District Court (N.S.W.)
[316][1989] HCA 46; (1989) 168 CLR 23 at 45-46.). But that is not the present case. Here
[317]the trial should proceed to its conclusion, the objection by Rogers to
[318]the admissibility of the records of interview being upheld. Both the
[319]Crown and Rogers are entitled to a verdict on the issues joined by
[320]Rogers' plea of not guilty and no judge should stand in the way of
[321]obtaining a verdict ((74) Connelly v. Director of Public Prosecutions
[322](1964) AC at 1304.). The submission that the trial before Judge
[323]Kinchington should be stayed as an abuse of process must be rejected.
[324]23. For these reasons, I would conclude that the Court of Criminal
[325]Appeal was right to dismiss the appeal against Judge Kinchington's
[326]refusal to stay the proceedings. Judge Kinchington was asked to stay
[327]the proceedings on the grounds that the confessions contained in the
[328]records of interview were not admissible but his Honour declined to do
[329]so on Rogers' preliminary application for a permanent stay. However,
[330]the question of the effect of Judge Phelan's ruling on admissibility
[331]was central to the debate before Judge Kinchington and the Court of
[332]Criminal Appeal and it would have been within the powers of the Court
[334]appeal against Judge Kinchington's refusal to make a ruling excluding
[335]that evidence. It should have done so. I would therefore allow the
[336]appeal, set aside the order of the Court of Criminal Appeal and in
[337]lieu thereof allow the appeal to that Court and declare that the
[338]records of interview taken on 27 or 28 August 1988 are not admissible
[339]against the appellant on his trial on the indictment presented before
[340]DEANE AND GAUDRON JJ The appellant, Grahame Andrew Rogers, was
[341]interviewed by police in August 1988 in relation to a number of armed
[342]robberies ("the 1988 interview"). He made various admissions which
[343]were recorded in four separate typewritten documents or records of
[344]interview. He signed each of the documents and was later charged with
[345]2. In 1989, the appellant stood trial in the District Court of
[346]New South Wales on four charges of armed robbery, the robberies in
[347]question having been the subject of confessional statements made
[348]during the 1988 interview. The relevant records of interview or, more
[349]accurately, two of them and relevant parts of the third ((75) The
[350]first two records of interview dealt with the first and second counts
[351]in the indictment respectively and the third (the fourth record
[352]actually signed by the appellant) dealt with the third and fourth
[353]counts and various other offences which were not charged in the
[354]indictment.) were tendered and objected to. The trial judge conducted
[355]a voir dire examination in which, to quote his Honour "the real issue"
[356]came "down to the voluntariness of the records of interview". In a
[357]context where the Crown bore the onus of proof on the balance of
[358]probabilities in relation to that issue, his Honour resolved it in
[359]favour of the appellant, holding that the appellant had not voluntarily
[360]participated in the making of the records of interview and thus, they
[361]were inadmissible. The trial proceeded and, in due course, the jury
[362]acquitted on the first and second counts and convicted on the third
[363]3. In 1992 the appellant was indicted on another eight charges
[364]of armed robbery. Of these, seven were the subject of confessional
[365]statements in the 1988 interview. The prosecution proposes to rely
[366]on those statements. One, a confessional statement in relation to a
[367]robbery at Bankstown Trotting Club, is contained in the fourth record
[368]of interview ((76) Strictly, this was the third record of interview
[369]signed by the appellant.), which was not relevant and, thus, was not
[370]tendered in the 1989 proceedings. The other six are contained in the
[371]third record of interview, parts of which were tendered on the third
[372]4. The appellant moved for a permanent stay of the 1992 indictment.
[373]The motion came on for hearing immediately following his arraignment.
[374]The argument for the appellant was that, by reason of the 1989 ruling
[375]on admissibility, tender of the records of interview as proposed by
[376]the prosecution would be an abuse of process, or alternatively, there
[377]5. It is common ground that the 1989 ruling was made by reference
[378]to the circumstances surrounding the making and signing of all four
[379]records of interview and that the specific matters on which the ruling
[380]was based applied equally and still apply equally to each of them.
[381]Thus, so far as voluntariness is concerned, the simple fact is that
[382]the confessional statements involved in this case are no different
[383]6. It emerged during the hearing of the motion that, although the
[384]only evidence against the appellant on the first, fourth, sixth and
[385]eighth counts is the confessional material recorded during the 1988
[386]interview, there is other evidence on the other counts. When this
[387]was made clear, the motion was treated as an application for a stay
[388]of proceedings on the former counts and for a declaration that the
[389]prosecution was not entitled to tender the records of interview on any
[390]of the other counts. The motion was dismissed. The Court of Criminal
[391]Appeal of the Supreme Court of New South Wales granted leave to appeal
[392]but dismissed the appeal. The appellant now appeals to this Court.
[393]7. It is convenient to deal first with the question of issue
[394]estoppel. It is well settled, so far as civil proceedings are
[395]concerned, that, if a "judicial determination directly involv(es) an
[396]issue of fact or of law ... that (issue) cannot afterwards be raised
[397]between the same parties or their privies" ((77) Blair v. Curran
[398][1939] HCA 23; (1939) 62 CLR 464 at 531 per Dixon J See Hoysted v. Federal
[399]Commissioner of Taxation [1921] HCA 56; (1921) 29 CLR 537 at 561 where Higgins J
[400](dissenting) first used the term "issue- estoppel". With regard to the
[401]development of the doctrine in English law, see Thoday v. Thoday (1964)
[402]P 181 at 197-198 per Diplock L.J; Fidelitas Shipping Co. Ltd. v. V/O
[403]Exportchleb (1966) 1 QB 630; Carl Zeiss Stiftung v. Rayner and Keeler
[404]Ltd. (No.2) (1967) 1 AC 853.). That rule, or "issue
[405]estoppel" as it is generally called, is different from "res judicata"
[406]or "cause of action estoppel" which occurs when a cause of action
[407]passes into judgment so that "it is merged and has no longer an
[408]independent existence" ((78) Blair v. Curran (1939) 62 CLR at 532.)
[409]and "no other proceedings can thereafter be maintained on (it)" ((79)
[410]Jackson v. Goldsmith [1950] HCA 22; (1950) 81 CLR 446 at 466. See also Port of
[411]Melbourne Authority v. Anshun Pty. Ltd. [1981] HCA 45; (1981) 147 CLR 589 at 597;
[412]Chamberlain v. Deputy Commissioner of Taxation [1988] HCA 21; (1988) 164 CLR 502 at
[413]507.). The rule with respect to res judicata or cause of action
[414]estoppel is embodied in the Latin maxim transit in rem judicatam.
[415]8. It was said by Fullagar J in Jackson v. Goldsmith that res
[416]judicata or cause of action estoppel is "not ... correctly classified
[417]under the heading of estoppel at all", but "is a broad rule of public
[418]policy based on the principles expressed in the maxims `interest
[419]reipublicae ut sit finis litium' and `nemo debet bis vexari pro eadem
[420]causa'". His Honour went on to say that issue estoppel was, in his
[421]view, "a true case of estoppel, analogous to estoppel by deed and
[422]estoppel by representation" ((80) (1950) 81 CLR at 466.).
[423]9. It will later be necessary to say something of the distinction
[424]drawn by Fullagar J between issue estoppel and res judicata or cause
[425]of action estoppel. It is convenient, before doing so, to say
[426]something of the Latin maxims to which his Honour referred. The
[427]first expresses the need, based on public policy, for judicial
[428]determinations to be final, binding and conclusive. The second looks
[429]to the position of the individual and reflects the injustice that
[430]would occur if he or she were required to litigate afresh matters
[431]which have already been determined by the courts. It is correct to
[432]say that res judicata or cause of action estoppel derives from the
[433]principles embodied in those maxims, which principles are fundamental
[434]to any civilized and just judicial system. There is, however, another
[435]related principle, likewise fundamental, which is embodied in the
[436]Latin maxim res judicata pro veritate accipitur. That maxim gives
[437]expression to a rule of Roman law which has since been recognized
[438]as part of our common law. It expresses the need for decisions of
[439]the courts, unless set aside or quashed, to be accepted as
[440]incontrovertibly correct. The same idea was expressed in Coke's
[441]Institutes in terms of the "incontrollable credit and veritie" of the
[442]records and memorials of the judges of the courts of record, which
[443]"admit no averment, plea or proofe to the contrarie" ((81) 2 Co.
[444]Littl. 260(a).). That principle is not only fundamental, it is
[445]essential for the maintenance of public respect and confidence in the
[446]administration of justice ((82) As to the necessity for courts to
[447]conduct their proceedings with this end in view, see Connelly v. DPP
[448]10. From earliest times, the principle embodied in the maxim res
[449]judicata pro veritate accipitur has been seen as necessary to protect
[450]against "the scandal of conflicting decisions" ((83) Spencer Bower and
[451]Turner, The Doctrine of Res Judicata, 2nd ed. (1969) at 411.). Issue
[452]estoppel and res judicata or cause of action estoppel are mechanisms
[453]which protect against conflict of that kind. However, the principle
[454]has an existence beyond those mechanisms so that, for example, it is an
[455]abuse of process to mount a collateral attack in civil proceedings on
[456]an earlier decision in a criminal trial. At least that is so unless
[457]there is a less onerous burden of proof or there is fresh evidence or
[458]proof of fraud ((84) See, for example, Hunter v. Chief Constable of
[459]the West Midlands Police [1981] UKHL 13; (1982) AC 529 at 541, 544-545 per Lord
[460]Diplock; Bryant v. Collector of Customs (1984) 1 NZLR 280 at 284-285.).
[461]11. As earlier indicated, there is a real distinction between issue
[462]estoppel and res judicata or cause of action estoppel ((85) See fns
[463](78) and (79).). That distinction was recently reaffirmed by this
[464]Court in Chamberlain v. Deputy Commissioner of Taxation ((86) (1988)
[465]164 CLR at 507-508. See also Tanning Research Laboratories Inc. v.
[466]O'Brien [1990] HCA 8; (1990) 169 CLR 332 at 345-346.). But in our view, the
[467]distinction does not depend on issue estoppel being a true estoppel and
[468]res judicata being a manifestation of the policy considerations
[469]embodied in the Latin maxims identified by Fullagar J in Jackson v.
[470]Goldsmith. If issue estoppel is confined to an issue of fact or law
[471]directly involved in a judicial determination, as was said in Blair v.
[472]Curran ((87) (1939) 62 CLR at 531 per Dixon J), to a matter which
[473]has been put in issue and determined, as was said in Outram v. Morewood
[475]at 633).), or to an essential element in a cause of action or defence
[476]in proceedings in which judgment has been entered, as was said in Mills
[477]v. Cooper ((89) (1967) 2 QB 459 at 468 per Diplock L.J) - and we
[478]understand the effect of the joint judgment of Gibbs CJ, Mason and
[479]Aickin JJ in Port of Melbourne Authority v. Anshun Pty. Ltd. ((90)
[480](1981) 147 CLR at 604.) to be that it is confined to such issues -
[481]then, it is justified by the same policy considerations that give rise
[482]to res judicata or cause of action estoppel. In our view, it ought now
[483]be seen, not as a true estoppel, but as a different manifestation of
[484]those same policy considerations. Indeed that is the view that was
[485]taken by Diplock LJ in Mills v. Cooper ((91) (1967) 2 QB at 469.)
[486]and accepted as correct by Viscount Dilhorne and Lord Hailsham of St.
[487]Marylebone in Reg. v. Humphrys ((92) (1977) AC 1 at 19-20, 21 per
[488]12. Of course, there may be true estoppels which prevent a person
[489]from raising an issue bearing on a matter to be judicially determined.
[490]An estoppel of that kind may come about because of the way in which
[491]proceedings have been conducted with the result that the issue cannot
[492]thereafter be raised in those proceedings or on appeal ((93) See, for
[493]example, Banque Commerciale S.A., en Liquidation v. Akhil Holdings Ltd.
[494][1990] HCA 11; (1990) 169 CLR 279 at 284 per Mason CJ and Gaudron J and the cases
[495]there cited. See also Calin v. Greater Union Organisation Pty. Ltd.
[497]party fails to raise an issue although he or she might reasonably have
[498]done so, there may well be a true estoppel which precludes that party
[499]13. Considerations bearing on estoppel resulting from the failure to
[500]raise some issue which could reasonably have been raised in earlier
[501]proceedings have sometimes been conflated with considerations relevant
[502]to the various principles aimed at ensuring the final, binding and
[503]conclusive nature of judicial determinations. This seems to have been
[504]the case with the so-called "extended principle" in Henderson v.
[506]
"(t)he plea of res judicata applies, except in special
cases, not only to points upon which the Court was actually
required by the parties to form an opinion and pronounce a
judgment, but to every point which properly belonged to the
subject of litigation, and which the parties, exercising
reasonable diligence, might have brought forward at the
time".
[507]It is clear that that principle, if it be one, is to be treated with
[508]caution ((95) Port of Melbourne Authority v. Anshun Pty. Ltd. (1981)
[509]14. It may be that some cases of true estoppel resulting from the
[510]failure to raise a matter which could reasonably have been raised
[511]in earlier proceedings will also prove, on analysis, to involve an
[512]impermissible challenge to the incontrovertible correctness of the
[513]judgment given in those proceedings. Indeed, there seems to have been
[514]a conjunction of that kind in Port of Melbourne Authority v. Anshun
[515]Pty. Ltd. ((96) ibid. at 602-604 per Gibbs CJ, Mason and Aickin JJ).
[516]However, in our view, estoppel is separate and distinct from the
[517]principles which secure the final, binding and conclusive nature of
[518]judicial determinations and their conflation can only result in
[519]15. The question whether there is any room in criminal proceedings
[520]for issue estoppel of the kind that has developed in civil proceedings
[521]was considered by this Court in Reg. v. Storey ((97) [1978] HCA 39; (1978) 140 CLR
[522]364.), some few months after the House of Lords considered the same
[523]question in Reg. v. Humphrys. It was held in Humphrys that issue
[524]estoppel has no application in criminal proceedings. The same view was
[525]taken by Barwick CJ, Gibbs and Mason JJ in Storey, whilst the other
[526]members of the Court considered that there were some situations, albeit
[527]rare and strictly circumscribed, in which there might be an estoppel
[528]in favour of an accused ((98) ibid. at 372 per Barwick CJ, 388 per
[529]Gibbs J, 400-401 per Mason J, 413-414 per Murphy J, 416-417 per
[530]Aickin J (with whom Stephen J concurred).). It should be noted,
[531]however, that Jacobs J preferred not to use the expression "issue
[532]estoppel" and proceeded on the basis that the rule in question was an
[533]aspect of the rule against double jeopardy which, in his Honour's view,
[534]extended beyond the plea of autrefois acquit and included the situation
[535]where "the commission of the first offence can be shown to be an
[536]essential element of the second offence charged ... whether or not the
[537]plea of autrefois acquit be open" ((99) ibid. at 407. Note, his
[538]Honour gave the following example of a situation in which the principle
[539]would operate even though the plea of autrefois acquit would not be
[540]available: "if there had been an acquittal of rape, and then the woman
[541]had died, the defendant could not be convicted of murder upon
[542]evidence that, in the course of committing the felony of
[543]rape, he had killed the woman", that being the converse
[544]of the situation considered in Mraz v. The Queen (No.2) [1956] HCA 54; (1956)
[545]Court, namely, Stephen, Murphy and Aickin JJ, can be regarded as
[546]accepting that issue estoppel of the kind recognized in civil
[547]proceedings is also applicable in criminal proceedings. And, even
[548]then, there is nothing in their Honours' judgments to suggest that, as
[549]between civil and criminal proceedings, there is a complete analogy,
[550]or even substantial similarity, as to the circumstances in which issue
[551]16. It was emphasized in Humphrys that there is a distinction between
[552]issue estoppel and the pleas of autrefois acquit and autrefois
[553]convict ((100) (1977) AC at 15-16 per Viscount Dilhorne, 33-34 per
[554]Lord Hailsham, 44 per Lord Salmon, 52 per Lord Edmund-Davies.). The
[555]distinction, at least so far as it concerns autrefois acquit, requires
[556]further consideration. Autrefois acquit and autrefois convict are
[557]often seen as different sides of the same coin ((101) See Spencer Bower
[558]and Turner, op.cit. at 268-269.). To some extent they are: to the
[559]extent that they prevent the prosecution of crimes for which an accused
[560]has either been acquitted or convicted, they prevent inconsistent
[561]decisions and serve to maintain the principle embodied in the maxim res
[562]judicata pro veritate accipitur. Beyond that, however, they reflect
[563]quite different considerations. Autrefois convict is the application
[564]in criminal proceedings of the doctrine of merger which gives rise to
[565]res judicata or cause of action estoppel in civil proceedings;
[566]autrefois acquit operates within its confines to prevent the
[567]prosecution from asserting the contrary of what has previously been
[568]judicially determined in favour of an accused ((102) As to this
[569]distinct aspect of autrefois acquit, see Mills v. Cooper (1967) 2 QB at
[570]468-469. See also Connelly v. DPP (1964) AC at 1334 per Lord
[571]Hodson, 1365 per Lord Pearce; Reg. v. Humphrys (1977) AC at 32-33 per
[572]Lord Hailsham. And see generally Friedland, Double Jeopardy, (1969) at
[573]94-95. Note that it is sometimes said that Reg. v. King (1897) 1 QB
[574]214 is an example of autrefois convict operating as an estoppel,
[575]although the better explanation would seem to be that of
[576]inconsistent verdicts.). In this respect, autrefois
[577]acquit is analogous to issue estoppel in civil proceedings, although
[578]it clearly operates within a more limited area. In large part, that
[579]is the result of the different character of civil and criminal
[580]proceedings and the difficulty involved in identifying precisely
[581]what, besides guilt or innocence, has been determined by the jury's
[582]verdict ((103) See, for example, Reg. v. Storey (1978) 140 CLR at 374
[583]per Barwick CJ, 379-380 per Gibbs J, 400 per Mason J).
[584]17. As already indicated, the conclusive aspect of autrefois acquit
[585]or that aspect of it which maintains the incontrovertible character of
[586]judicial decisions derives from the principle embodied in the maxim
[587]res judicata pro veritate accipitur. Its preclusive aspect, or that
[588]aspect which prevents the re-litigation of matters already determined
[589]in favour of the accused, derives from the same principles as issue
[590]estoppel, as is the principle embodied in the maxim nemo debet bis
[591]vexari pro eadem causa ((104) See Reg. v. Humphrys (1977) AC at 40 per
[592]Lord Hailsham.) which, in its application to criminal proceedings, has
[593]become known as the rule against double jeopardy ((105) See Sigler,
[594]Double Jeopardy: The Development of a Legal and Social Policy (1969) at
[595]18. It is clear from the decision in Mraz v. The Queen (No.2) ((106)
[597]autrefois acquit does not exhaust the operation in criminal proceedings
[598]of the principles embodied in the maxims res judicata pro veritate
[599]accipitur and nemo debet bis vexari pro eadem causa. In that case a
[600]verdict of (not guilty of murder but) guilty of manslaughter where, on
[601]the prosecution case, death occurred in the course of the accused
[602]committing rape (thus, invoking the felony-murder rule) necessitated an
[603]acquittal when the accused was later charged with rape. The fact that
[604]there is scope for the further operation of those principles appears
[605]also from the rule that the prosecution cannot go behind an acquittal
[606]((107) As to this rule, see generally Garrett v. The Queen [1977] HCA 67; (1977) 139
[607]CLR 437 and Reg. v. Storey [1978] HCA 39; (1978) 140 CLR 364. See also Sambasivam v.
[608]Public Prosecutor, Federation of Malaya (1950) AC 458.) and the
[609]requirement that interrelated verdicts be logically consistent ((108)
[610]See, for example, Giorgianni v. The Queen [1985] HCA 29; (1985) 156 CLR 473 where
[611]acquittal of the principal offender necessarily resulted in the
[612]quashing of an accessory's conviction for aiding and abetting.). Even
[613]when these matters are taken into account along with the pleas of
[614]autrefois, logic does not compel the conclusion that the principles are
[615]19. It has been said that there is a need for the development of
[616]reasonable and workable rules in this area of the law and that
[617]one difficulty in that regard is "(t)he lack of an adequate
[618]terminology" ((109) See Friedland, op.cit. at 89.). In our view,
[619]neither that consideration nor the need to consider individual cases
[620]which fall outside the pleas of autrefois and which are not covered by
[621]the doctrines that have developed with respect to the unassailable
[622]nature of an acquittal and the need for consistency, justifies the
[623]importation of issue estoppel into criminal proceedings. And that is
[624]so notwithstanding that, in our view, issue estoppel is not a true
[625]estoppel but a manifestation of the principles directed to ensuring the
[626]incontrovertible character of judicial decisions and the finality of
[627]20. Issue estoppel would not only overlap with the plea of autrefois
[628]acquit and with the doctrines that have already developed, but its
[629]importation into the realm of criminal proceedings could well impede
[630]the development of coherent principles which recognize and allow for
[631]the distinct character of such proceedings. The preferable course, in
[632]our view, is to accept that the principles which operate in this area
[633]are fundamental and that the pleas and the developed doctrines
[634]relating to the unassailable nature of acquittals and the need for
[635]21. Clearly, the present case is not concerned with the plea of
[636]autrefois acquit, the unassailable nature of an acquittal or the need
[637]to avoid inconsistent verdicts. Nor is the case one which calls for
[638]any consideration of the rule against double jeopardy: the offences
[639]with which the accused is presently charged are distinct offences,
[640]unrelated to those on which he was indicted in 1989. The only
[641]question is whether the principle which ensures the incontrovertible
[642]character of judicial decisions precludes the tender of the records of
[643]22. It was put on behalf of the respondent that there is nothing
[644]conclusive about a ruling as to the admissibility of evidence which,
[645]it was said, involves no final determination of any issue of fact or
[646]law. That is so. But this case is concerned with the determination
[647]of an issue of fact, namely, voluntariness, on which the admissibility
[648]of confessional material depends. It was also put that a voir dire
[649]examination does not result in a conclusive determination of
[650]voluntariness for it can be reconsidered at any time during the trial.
[651]Again that is so, but it becomes final once a verdict is returned
[652]and it remains final unless the verdict is quashed or set aside.
[653]Moreover, its character as a final determination does not depend
[654]on whether there is a right of appeal: leaving aside the limited
[655]circumstances in which a court can vacate its own judgment, a judicial
[656]decision is final and binding unless quashed or set aside on appeal;
[657]it is necessarily final if there is no right of appeal.
[658]23. The question whether the prosecution can tender confessional
[659]material ruled involuntary and, thus, inadmissible in an earlier
[660]concluded trial has been considered in other jurisdictions. That
[661]course is permitted in some jurisdictions in the United States of
[662]America ((110) See, for example, United States v. Wallace [1949] USSC 51; (1949) 336 US
[663]793; United States v. Williams [1955] USCA4 222; (1955) 227 F 2d 149; Gasaway v. State
[664]of Indiana (1967) 231 NE 2d 513 as to Indiana; People v. Plevy
[665](1980) NY 417 NE 2d 518 as to New York; State of Florida v.
[666]McCord (1981) Fla 402 So 2d 1147 as to Florida; Commonwealth of
[667]Pennsylvania v. Lagana (1986) 509 A 2d 863 as to Pennsylvania.), but
[668]not in others ((111) See, for example, People v. Williams (1975) 322 NE
[669]2d 461 as to Illinois and People v. Gray (1974) 222 NW 2d 515 as to
[670]Michigan.). It has been held in New Zealand, in Bryant v. Collector
[671]of Customs ((112) (1984) 1 NZLR at 284.), that the tender of
[672]confessional material which has been ruled involuntary in an earlier
[673]trial involves an impermissible challenge to a final judicial
[674]determination and is, thus, an abuse of process. A different view was
[676]
"if there is a bar to an extension of the doctrine of res
judicata to rulings on confession voir dires, it does not
stem from principle or logic. It is desirable that we avoid
relitigation of the issue and, as in this case, the risk of
conflicting decisions."
[677]Nevertheless, it was held in that case that the material previously
[678]ruled involuntary could be tendered for two reasons. The first was
[679]that "there is no appeal (from a finding on a voir dire), and error is
[680]generally subject to limited review" ((115) ibid. at 99. The reference
[681]to "limited review" seems to be directed to the recognition of a right
[682]of appeal on questions of law following acquittal.). However and as
[683]earlier noted, that does not detract from the finality of the
[684]determination. The second was the perceived need for mutuality. In
[685]this regard it was said that a "statement wrongfully admitted ... would
[686]follow and prejudice an accused throughout all of his other trials"
[687]((116) ibid.). Mutuality is not a matter upon which the principles
[688]which ensure the incontrovertible character of judicial determinations
[689]and protect against double jeopardy depend. Rather, it is a
[690]consequence of their application in civil proceedings. The position is
[691]necessarily different in criminal proceedings where the prosecution
[692]bears the onus of proving guilt beyond reasonable doubt and the accused
[693]is entitled to insist that the prosecution discharge that onus in the
[694]25. Strictly, the 1989 ruling on voluntariness was concerned only
[695]with those parts of the records of interview relevant to the offences
[696]for which the appellant then stood trial. However and as already
[697]indicated, the statements which the prosecution wishes to tender in
[698]the appellant's forthcoming trial are, so far as voluntariness is
[699]concerned, exactly the same as those tendered in the 1989 proceedings.
[700]In the circumstances, tender of the records of interview constitutes
[701]a direct challenge to the 1989 determination which was a final
[702]determination, or became so, once verdicts were returned. The
[703]challenge is one which invites "the scandal of conflicting
[704]decisions" ((117) Spencer Bower and Turner, op.cit. at 411.). And it
[705]jeopardises public confidence in the administration of justice: in a
[706]context where the onus of proof would be the same and where there is no
[707]claim of "fresh evidence" or fraud, a determination that the
[708]confessions were made voluntarily would undermine the incontrovertible
[709]correctness of the verdicts of acquittal returned in 1989; equally,
[710]there would be a shadow over any conviction on the charges in the
[711]present indictment if confessional statements are admitted in evidence
[712]notwithstanding the earlier judicial determination that the
[713]circumstances in which they were made did not support a finding of
[714]26. The course proposed by the prosecution amounts to an abuse
[715]of process. The appeal should be allowed and there should be a
[716]declaration to that effect. There is no need for any further order in
[717]relation to counts 1, 4, 6 and 8: if no evidence is presented, the
[718]McHUGH J The first question in this appeal is whether on the
[719]proposed trial of the appellant on charges of armed robbery the Crown
[720]is estopped from, or would be guilty of an abuse of process in,
[721]tendering confessional evidence which was rejected in an earlier trial
[722]of other charges of armed robbery. The confessional evidence is
[723]contained in a record of interview. It was rejected at the earlier
[724]trial on the ground that the confessional evidence was not made
[725]voluntarily. A second and similar question arises in the appeal
[726]in respect of confessional evidence contained in another record of
[727]interview that was made shortly before the making of the record of
[728]interview that was rejected in the earlier proceedings. In my
[729]opinion, no issue estoppel has arisen in respect of either record of
[730]interview, and it would not be an abuse of process to tender them at
[731]2. The appellant was arrested in August 1988 and charged with a
[732]number of offences of armed robbery. Before he was charged, he made
[733]four records of interview allegedly containing various admissions
[734]in respect of the offences. In 1989, he was tried by a jury in the
[735]District Court of New South Wales on an indictment containing four
[736]counts of offences of armed robbery. At the trial, the Crown sought
[737]to rely on admissions in three of the records of interview. The first
[738]and second records of interview contained admissions concerning counts
[739]1 and 2 of the indictment. The fourth record of interview ((118) I
[740]have numbered the records of interview in the order in which they were
[741]taken.) contained admissions concerning counts 3 and 4 of that
[742]indictment. The trial judge, Phelan DCJ, rejected the tender of the
[743]first, second and fourth records of interview on the ground that they
[744]were not made voluntarily. His Honour held that the appellant
[745]"participated in what I take to be a damning record of interview
[746]because of a desire on his part to protect his wife and child from
[747]suffering a further traumatic incident". The appellant was acquitted
[748]on counts 1 and 2. He was convicted on counts 3 and 4.
[749]3. In 1992, the Crown indicted the appellant in the District Court
[750]on a further eight counts of armed robbery. On the trial of the
[751]indictment, the Crown proposes to rely on confessional evidence in the
[752]fourth record of interview ((119) This was the record of interview
[753]relied on in support of counts 3 and 4 in the trial before Phelan
[754]DCJ) to support its case on six of the counts. It proposes to rely
[755]on confessional evidence in the third record of interview to support
[756]its case on the fourth count of the indictment. No record of interview
[757]is relied on in support of the remaining count. The Crown does not
[758]propose to rely in any way on the first and second records of interview
[759]which contained admissions concerning the charges of which the
[760]4. After the 1992 indictment was presented, the appellant asked
[761]Kinchington DCJ to stay the proceedings. His Honour refused to do
[762]so. His decision was upheld by the Court of Criminal Appeal of the
[763]Supreme Court of New South Wales. Gleeson CJ, who gave the judgment
[764]
"(T)he confessions to be relied upon by the Crown at the
further trial of the appellant are alleged confessions to
crimes different from the crimes with which Judge Phelan was
concerned, and the facts mentioned in such confessions were
different from the facts relating to the alleged crimes
with which he was dealing. It is true that the additional
confessions were made at the same time and in the same
circumstances as the confessions with which he was
concerned, but that is not enough to sustain the appellant's
argument."
[765]5. The uses and proposed uses of the four records of interview are
[766]
Robbery location RoI tendered Verdict
and date but rejected
in 1989 trial
[767]Count 2 Bardwell Park (31.1.88) Nos 1 and 2 Acquitted
[768]
Robbery location RoI proposed
and date to be tendered
[769]6. The policy of the law is to prevent ultimate issues of fact or
[770]law in dispute between parties from being adjudicated in judicial
[771]proceedings more than once. A final determination on an ultimate
[772]issue of fact or law, once given by a judicial tribunal acting within
[773]its jurisdiction, forever binds the parties and all those who claim
[774]through them. As a result of this policy, neither the parties nor
[775]those claiming through them can dispute the correctness of the
[776]determination in subsequent litigation. The remedy for the incorrect
[777]determination of an ultimate issue is to set it aside; it cannot be
[778]attacked collaterally in other judicial proceedings. However, a
[779]judicial determination is only binding in respect of matters that were
[780]fundamental to the determination. Those matters include every matter
[781]that was essential to the decision even if that matter was not itself
[782]contested in the litigation ((120) Hoystead v. Commissioner of Taxation
[783](1926) AC 155 at 165, 170; Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464 at
[784]531-532.). Consequently, an issue estoppel arises in respect of every
[785]issue of fact or law that is "necessarily decided by the prior
[786]judgment, decree or order" ((121) Blair (1939) 62 CLR at 532 per Dixon
[787]J). In Blair v. Curran ((122) ibid at 510.), Starke J said:
[788]
"(A) judgment is conclusive evidence not merely of the facts
directly decided but of those facts which are necessary
steps to the decision - so cardinal to it that without them
it cannot stand."
[789]7. An issue estoppel can only arise, however, in respect of an
[790]ultimate issue in the litigation. No estoppel can arise in respect of
[791]evidentiary issues even when they are the building blocks in the proof
[792]of an ultimate issue. In Thoday v. Thoday ((123) (1964) P 181 at 198.)
[793]
"The determination by a court of competent jurisdiction of
the existence or non-existence of a fact, the existence of
which is not of itself a condition the fulfilment of which
is necessary to the cause of action which is being litigated
before that court, but which is only relevant to proving the
fulfilment of such a condition, does not estop at any rate
per rem judicatam either party in subsequent litigation from
asserting the existence or non-existence of the same fact
contrary to the determination of the first court."
[794]In Reg. v. Storey ((124) [1978] HCA 39; (1978) 140 CLR 364 at 424.) Aickin J said:
[795]
"(I)ssue estoppel applies only to issues. There is no
estoppel as to evidentiary facts found in the course of
determining an issue. There is nothing to prevent a party,
in a later proceeding in relation to a particular issue of
fact negatived in the earlier proceeding, tendering evidence
of those same facts directed to a different issue."
[796]8. In theory, the doctrine of issue estoppel should apply in criminal
[797]trials as well as in civil proceedings. But there are practical
[798]difficulties in applying it. There is no need for me to discuss those
[799]difficulties. They were extensively discussed in the speeches in
[800]the House of Lords in Reg. v. Humphrys ((125) (1977) AC 1.) and in the
[801]judgments of members of this Court in Storey. Notwithstanding those
[802]difficulties, I agree with the reasons of Brennan J in this case for
[803]holding that the doctrine of issue estoppel is applicable in favour of
[804]the accused in criminal proceedings in this country. Indeed, in my
[805]opinion, before this Court could reject the application of the doctrine
[806]to criminal proceedings, it would have to overrule the decision of
[807]this Court in Mraz v. The Queen (No.2) ((126) [1956] HCA 54; (1956) 96 CLR 62. I am
[808]unable to agree with the view of Mason J in Storey (1978) 140 CLR at
[809]400-401 that Mraz (No.2) was a case of res judicata and not issue
[810]estoppel.), a decision that has stood for nearly 40 years.
[811]9. In my opinion, the doctrine of issue estoppel has no application
[812]in this case. The issues that were involved in the trial in 1989 are
[813]not the same as those that are involved in the current proceedings.
[814]They relate to quite different charges in respect of quite different
[815]premises. For that reason alone, the ruling of Phelan DCJ cannot
[816]10. Moreover at the 1989 trial, the issue as to whether the appellant
[817]made the records of interview voluntarily was not a matter that was
[818]a necessary step in the verdicts of acquittal or conviction. The
[819]verdicts in the 1989 trial are, of course, final determinations that
[820]bind the Crown and the appellant. They determine once and for all
[821](1) the appellant was not guilty of the offence of armed robbery in
[822]
respect of premises at Panania on 29 December 1987;
[823](2) the appellant was not guilty of the offence of armed robbery in
[824]
respect of premises at Bardwell Park on 31 January 1988;
[825](3) the appellant was guilty of the offence of armed robbery in
[826]
respect of premises at Belmore on 17 March 1988;
[827](4) the appellant was guilty of the offence of armed robbery in
[828]
respect of premises at Berkeley on 10 April 1988.
[829]If the accused was charged again with any of those four offences,
[830]he could plead autrefois acquit or autrefois convict, as the case
[831]required. The judgments of acquittal and conviction are also
[832]conclusive evidence of any "matter necessarily decided" by those
[833]judgments. But those judgments do not decide, let alone necessarily
[834]decide, that the records of interview were not made voluntarily.
[835]11. The findings of Phelan DCJ were simply findings concerning
[836]the conditions of admissibility of evidence. I have already pointed
[837]out that issue estoppel does not arise in respect of evidentiary
[838]facts ((127) Supra at 30, see Blair (1939) 62 CLR at 532; Brewer v.
[839]Brewer [1953] HCA 19; (1953) 88 CLR 1 at 15-16; Thoday (1964) P at 198; Cachia v.
[840]Isaacs (1985) 3 NSWLR 366 at 386.). No finding of his Honour was a
[841]determination, let alone a final determination, of an ultimate issue.
[842]The ultimate issues in the trial before Phelan DCJ were whether, on
[843]particular dates, the appellant had committed the acts that constituted
[844]the elements of armed robbery at the premises specified in the
[845]indictment. A finding by Phelan DCJ that the appellant had
[846]voluntarily made a confession about any of those robberies would have
[847]been evidence of his guilt. But it would have required a finding by the
[848]jury that the confession was reliable enough to be acted upon before
[849]12. The issue as to whether the confession was made voluntarily,
[850]therefore, was neither an ultimate issue nor a matter that was
[851]essential to the determination of an ultimate issue. The appellant
[852]could be convicted, as he was on the third and fourth counts in 1989,
[853]even though Phelan DCJ found that the records of interview were
[854]not made voluntarily. He could have been acquitted on all counts even
[855]if Phelan DCJ had found that the records of interview were made
[856]voluntarily. Even if his Honour had admitted the records of interview
[857]into evidence and the jury had brought in a special verdict that the
[858]records of interview were or were not made as the result of fear or
[859]threats, no issue estoppel would have arisen ((128) See Jackson v. The
[860]Queen [1962] HCA 49; (1962) 108 CLR 591 as to the jury's right to examine for itself
[861]the evidence that goes to the issue of voluntariness, notwithstanding
[862]the trial judge's findings. The Court said (at 596):
[863]
"where a question arises as to the weight to be given
by the tribunal of fact to a confession of guilt, no
authority is needed for the proposition that all the
circumstances surrounding the making of it which tend
to show either that it can safely be relied upon or
that it would be unwise to do so are admissible. It
would for example be clearly permissible to show that,
at the time a person confessed to the commission of a
crime, he was drunk or insane or had made it as the
result of fear or under some other form of pressure and
to base upon that evidence an argument that the
confession has no little or no probative value."
(my emphasis)). The jury's verdict
[864]on that issue, like that of Phelan DCJ, would be a finding on an
[865]evidentiary fact and would not be "so cardinal" to any of the verdicts
[866]that, without it, that verdict could not stand. The truth of that
[867]proposition is demonstrated by the conviction of the accused on
[868]the third and fourth counts of the indictment at the 1989 trial,
[869]notwithstanding that the fourth record of interview was held by
[870]Phelan DCJ to have been made involuntarily and its tender rejected.
[871]13. Because the ruling of Phelan DCJ was not a determination of an
[872]ultimate issue or a matter that was necessarily decided by such a
[873]determination, no issue estoppel arose in respect of the ruling. It
[874]follows that, in so far as the Crown relies on admissions contained in
[875]the fourth record of interview to prove counts 1, 2, 3, 5, 6 and 8 of
[876]the current indictment, no issue estoppel prevents it from doing so.
[877]14. Further, no issue estoppel is involved in respect of the third
[878]record of interview. Neither that record of interview nor the offence
[879]alleged in the fourth count was the subject of any ruling or verdict
[880]at the trial before Phelan DCJ Nor was its voluntariness
[881]necessarily involved in the jury's determinations as to the
[882]appellant's guilt or innocence of the four counts tried in 1989.
[883]15. Accordingly, the Crown is not estopped from relying on the third
[884]and fourth records of interview at the trial of the appellant.
[885]16. Inherent in every court of justice is the power to prevent its
[886]procedures being abused ((129) Hunter v. Chief Constable of the West
[887]Midlands Police [1981] UKHL 13; (1982) AC 529 at 536.). Although the categories of
[888]abuse of procedure remain open, abuses of procedure usually fall into
[889](1) the court's procedures are invoked for an illegitimate purpose;
[890](2) the use of the court's procedures is unjustifiably oppressive to
[891](3) the use of the court's procedures would bring the administration
[892]Many, perhaps the majority of, cases of abuse of procedure arise
[893]from the institution of proceedings. But any procedural step in the
[894]course of proceedings that have been properly instituted is capable of
[895]being an abuse of the court's process. In Walton v. Gardiner ((130)
[896](1992) 177 CLR 378 at 393.), Mason CJ, Deane and Dawson JJ said
[897]that the jurisdiction to stay proceedings that are an abuse of process
[898]"extends to all those cases in which the processes and procedures of
[899]the court, which exist to administer justice with fairness and
[900]impartiality, may be converted into instruments of injustice or
[901]unfairness". Their Honours gave three examples of such an abuse of
[902]process ((131) ibid.). One of them is the case where an estoppel
[903]cannot be established but the proceedings are unjustifiably oppressive
[904]because it is sought to litigate an issue which has already been
[905]disposed of by earlier proceedings ((132) See, for example, Reichel v.
[906]Magrath (1889) 14 App Cas 665 at 668; Connelly v. DPP (1964) AC 1254
[907]at 1361-1362.). Reichel v. Magrath ((133) (1889) 14 App Cas 665.) is
[908]17. In Reichel, the appellant, a clergyman, sought to relitigate
[909]the ultimate issues which he had lost in an earlier action that he
[910]had brought against his Bishop and others. In the earlier action,
[911]he had claimed a declaration that he was vicar of a benefice and an
[912]injunction to restrain the Bishop from instituting, and the other
[913]defendants from presenting, any other person to the benefice.
[914]Judgment was given against the appellant. Subsequently, the
[915]respondent was appointed to the benefice as the appellant's successor.
[916]He later brought an action against the appellant for a declaration
[917]that the respondent was the vicar of the benefice and an injunction to
[918]restrain the appellant from depriving the respondent of the occupation
[919]of the house and lands of the parsonage. In his statement of defence,
[920]the appellant set up the same case as that on which judgment had been
[921]given against him in the first action. Because the parties were
[922]different, no estoppels could arise. But because the appellant was
[923]seeking to relitigate the very issues on which judgment had been given
[924]against him, the House of Lords held that his statement of defence was
[925]18. Hunter v. Chief Constable of the West Midlands Police ((134) [1981] UKHL 13; (1982)
[926]AC 529.) was also decided on the basis that it is an abuse of process
[927]to attempt to relitigate an issue already decided by a court of
[928]justice. But I think that the decision is best explained as a case of
[929]an abuse of process arising from civil proceedings being commenced for
[930]the improper purpose of putting pressure on the Home Secretary to
[931]review the appellant's criminal convictions. Hunter was one of the
[932]so-called Birmingham Six. The written and oral confessions of Hunter
[933]and his fellow accused amounted to the chief evidence against them on
[934]charges of murder. They alleged that the confessions were made as the
[935]result of threats and violence. The trial judge found, beyond
[936]reasonable doubt ((135) This is not the test in Australia: Wendo v.
[937]The Queen [1963] HCA 19; (1963) 109 CLR 559.), that there had been no physical
[938]violence or threats by the police officers who obtained the confessions
[939]and that the confessions were made voluntarily. The appellant and the
[940]other accused repeated their allegations before the jury, but they were
[941]convicted. Subsequently, Hunter sued the police officers for damages
[942]for assault. The House of Lords held that Hunter's statement of claim
[943]should be struck out as an abuse of process of the court.
[944]19. Lord Diplock, with whose speech the other Lords agreed, said that
[945]the proceedings had been initiated ((136) Hunter (1982) AC at 541.):
[946]
"for the purpose of mounting a collateral attack upon a
final decision against the intending plaintiff which has
been made by another court of competent jurisdiction in
previous proceedings in which the intending plaintiff had a
full opportunity of contesting the decision in the court by
which it was made."
[947]Lord Diplock identified the "final decision" as that of the trial
[948]judge in finding that confessions were admissible ((137) ibid at 542.).
[949]His Lordship accepted that initially this decision was provisional
[950]because the trial judge had the power to reconsider the ruling until
[951]the jury brought in its verdicts. Consequently, finality was not
[952]achieved until "the trial ended with the return of the jury's verdict
[953]of guilty and the pronouncement by the judge of the mandatory sentence
[954]of life imprisonment" ((138) ibid.). Lord Diplock said that, once
[955]that had occurred, the decision was final; Hunter was mounting a
[956]collateral attack on this decision by proceeding with his civil claim.
[957]The claim was, therefore, an abuse of process. In reaching this
[958]decision, Lord Diplock applied a dictum of Lord Halsbury in Reichel
[959]
"I think it would be a scandal to the administration of
justice if, the same question having been disposed of by one
case, the litigant were to be permitted by changing the form
of the proceedings to set up the same case again".
[960]20. Lord Diplock did not explain in what sense the ruling of the
[961]trial judge had become final. If Lord Diplock meant that, after the
[962]verdict, the trial judge could no longer reverse his ruling, he was
[963]stating a truism that of itself had hitherto not been regarded as
[964]being of any relevance in the law of estoppel or the law of abuse of
[965]process. If he meant that the ruling was final in the same sense that
[966]a judgment may be final, he was equating a decision on an evidentiary
[967]fact with a judgment on an ultimate issue. That would have immense
[968]implications for the doctrines of abuse of process and estoppel.
[969]Further, in applying Lord Halsbury's dictum, Lord Diplock extended it
[970]to an evidentiary issue. Reichel was concerned with an attempt to
[971]relitigate ultimate issues. It was a very different case from Hunter.
[972]21. In my opinion, the decision in Hunter is best explained and
[973]justified on the ground that the civil action was brought for the
[974]improper purpose of putting pressure on the Home Secretary ((140) See
[975]Hunter (1982) AC at 541.) to review the plaintiff's convictions for
[976]murder ((141) This was also the conclusion of Davies J in Saffron v.
[977]Federal Commissioner of Taxation [1991] FCA 363; (1991) 102 ALR 19 at 23.). In so far
[978]as the decision rests on the conclusion that the ruling of the trial
[979]judge was a final determination in the same sense that determinations
[980]as to ultimate issues are final, it is contrary to principle and should
[981]22. However, Hunter was applied by the New Zealand Court of Appeal in
[982]Bryant v. Collector of Customs ((142) (1984) 1 NZLR 280.). In Bryant,
[983]the appellant had been charged with and acquitted of the theft of
[984]goods. During his trial, statements made to the police were ruled
[985]inadmissible. As a result, there was no evidence to go to the jury.
[986]He was then charged with smuggling the same goods. At the second
[987]trial, the same statements were ruled admissible. The appellant was
[988]convicted. The Court of Appeal of New Zealand held that the Crown was
[989]not "entitled to relitigate the issue of the voluntariness of
[990]statements made by the appellant to the police officer" ((143) ibid at
[991]282.). Issue estoppel is inapplicable in criminal proceedings in New
[992]Zealand ((144) Reg. v. Davies (1982) 1 NZLR 584.). However, the Court
[993]held that the proceedings were an abuse of process. It said ((145)
[994]
"It is obvious enough that misuse of the judicial process -
of which the attempted relitigating of issues is just one
example - is likely to produce unfairness and to undermine
confidence in the administration of justice."
[995]23. The Court said that only by holding that the proceedings were an
[996]abuse of process could the trial judge uphold the relevant public
[997]policies in this area of the criminal law ((146) ibid at 284.):
[998]
"that litigation should settle disputes finally; that an
accused should not be harassed again by the reopening of a
central issue on which he succeeded at the first trial; and
that if an unappealed or unsuccessfully appealed final
decision of one Court may be reopened by another Court any
resulting inconsistency can only bring the administration of
justice into disrepute."
[999]24. The Court of Appeal held that the use of the evidence held
[1000]inadmissible in the first trial was a collateral attack on the
[1001]acquittal in that trial and, therefore, an abuse of process.
[1002]
"The attempt to introduce the oral and written statements to
the police in evidence at the second trial was a challenge
to a final decision of another Court of competent
jurisdiction. ... Judge Callander's ruling at the first
trial that the tendered statements were not voluntary and
were accordingly inadmissible was immediately binding on
the Crown and became final when the verdict of the jury was
entered." ((147) ibid.)
[1003]25. With respect, this reasoning contains the same error as that which
[1004]occurs in the speech of Lord Diplock in Hunter. The ruling of the
[1005]trial judge was not a final determination in the sense that that term
[1006]has been understood in this area of the law. If the decision is to be
[1007]supported, it must be upon the basis that it is an abuse of process to
[1008]attempt to relitigate an issue that from a practical point of view was
[1009]determinative of the ultimate issues. It may be that Hunter can also
[1010]26. In my opinion, it would not be an abuse of process to tender the
[1011]third and fourth records of interview in the current proceedings.
[1012]27. As I have said, the third record of interview was not tendered in
[1013]the proceedings before Phelan DCJ It was not the subject of any
[1014]judicial determination as to its voluntariness in those proceedings.
[1015]It had no relevance to any of the four charges that were tried in
[1016]1989. I am unable to accept the proposition that, if the third record
[1017]of interview was now held to have been made voluntarily, it would
[1018]invite "the scandal of conflicting decisions" or undermine the two
[1019]verdicts of acquittal returned in 1989. A decision that the third
[1020]record was made voluntarily would not conflict with any prior decision
[1021]of Phelan DCJ or the verdicts of acquittal. The most that could
[1022]be said if the third record of interview was held to have been made
[1023]voluntarily is that the ruling was inconsistent with the ruling of
[1024]Phelan DCJ concerning the first, second and fourth records of
[1025]interview at the 1989 trial. But the prospect of inconsistency
[1026]between a ruling and a prior ruling is not enough to constitute an
[1027]abuse of process. Even the fact that a ruling or decision in one case
[1028]may inferentially lead to a conclusion that a ruling or decision in an
[1029]earlier case was wrong does not mean that it is an abuse of process to
[1030]ask a court to make the ruling or give the decision. In the light of
[1031]this Court's decision in Reg. v. Darby ((148) [1982] HCA 32; (1982) 148 CLR 668.),
[1032]for example, it could not be said that it was an abuse of process to
[1033]indict a conspirator simply because the co-conspirator was acquitted in
[1034]28. Moreover, neither as a logical nor a legal proposition does it
[1035]follow that, if the third record of interview is admitted into
[1036]evidence at the proposed trial, it would undermine the verdicts of
[1037]acquittal at the 1989 trial. All that its admission could do would
[1038]be to suggest - not establish - that the first and second records of
[1039]interview should have been admitted into evidence in support of the
[1040]first and second counts on which the appellant was acquitted. But
[1041]even then it does not necessarily follow that, if those records had
[1042]been put before the jury, they would have convicted the appellant
[1043]29. It is not enough to constitute an abuse of process in this case
[1044]that the circumstances surrounding the making of the third record of
[1045]interview were similar to, or even identical with, those surrounding
[1046]the first, second and fourth records of interview. If it was, then
[1047]any attempt to relitigate any finding or evidentiary or legal ruling
[1048]made in an earlier proceeding would constitute an abuse of process
[1049]if the circumstances surrounding the ruling were similar to those
[1050]surrounding the issue proposed to be litigated. Moreover, it would
[1051]seem to mean that any attempt to seek a finding that was inconsistent
[1052]with an earlier finding between the same parties would be an abuse of
[1053]process. It would follow that, whenever the Crown or an accused
[1054]person obtains a favourable finding in the course of a criminal trial
[1055]and the jury returns a verdict, neither party can tender any evidence
[1056]in any other proceedings that would tend, directly or indirectly, to
[1057]undermine the finding. Not only would such a proposition make the
[1058]doctrines of autrefois acquit, autrefois convict and issue estoppel in
[1059]criminal cases superfluous, it would preclude the litigation of facts
[1060]and issues to a far greater extent than those doctrines do.
[1061]30. I see little justification for extending the doctrine of abuse of
[1062]process to cover cases where a finding on an evidentiary or subsidiary
[1063]issue might undermine a finding in a previous trial. It is one thing
[1064]to preclude a party from litigating matters that constitute or were
[1065]necessarily involved in the ultimate issues in a case even if the
[1066]doctrines of res judicata and issue estoppel are not applicable. If
[1067]a party unsuccessfully appeals or fails to appeal against the adverse
[1068]judgment, no injustice arises from precluding that party from
[1069]litigating matters that have been adversely decided against him or her
[1070]and which were, or could have been, the subject of appeal. But if the
[1071]doctrine of abuse of process is extended to cover findings other than
[1072]those constituting or necessarily involved in the determination of
[1073]ultimate issues, injustices may arise. It often happens, for example,
[1074]that, in the course of a trial, adverse findings are made against the
[1075]party who is ultimately successful. That party may never have the
[1076]opportunity to appeal against a finding that is adverse but erroneous.
[1077]The error may arise from misdirection or wrongful rejection or
[1078]admission of evidence as well as incorrect evaluation of the evidence.
[1079]In an action for malicious prosecution, for example, the trial judge
[1080]may erroneously hold that there was no reasonable ground for the
[1081]prosecution but the defendant may succeed on the issue of malice. In
[1082]many criminal trials heard summarily, and in some heard on indictment,
[1083]the defendant has the onus of proving a statutory defence. It hardly
[1084]seems just that a defendant should be forever bound by an adverse but
[1085]incorrect finding by a magistrate or judge as to the constituent
[1086]elements of the offence if the defendant is acquitted by reason of the
[1087]31. It would seem even more unjust if it was the law that it is an
[1088]abuse of process for an accused person to contest the voluntariness
[1089]of a confession merely because, in an earlier case where the accused
[1090]was convicted or acquitted, it was held that the record of interview
[1091]containing the confession was made voluntarily. The injustice to
[1092]the accused would be greater still if it was held to be an abuse of
[1093]process to contest the voluntariness of a confession because a judge
[1094]had already held that another confession of the accused made in
[1095]similar circumstances on the same day had been made voluntarily. If
[1096]Phelan DCJ had held in 1989 that the first, second and fourth
[1097]records of interview were made voluntarily and the appellant had been
[1098]convicted on the four counts, could it be seriously suggested that
[1099]it was an abuse of process for the appellant to litigate the
[1100]voluntariness of the third record of interview in the current
[1101]proceedings? Yet it is argued that it is an abuse of process for the
[1102]Crown to litigate the voluntariness of that record of interview in the
[1103]32. A further reason why the doctrine of abuse of process should not
[1104]be extended to cover cases where a finding on an issue might undermine
[1105]a finding on an evidentiary or subsidiary issue is that the
[1106]evidentiary and subsidiary issues in a case are not always fully
[1107]developed or litigated. It often happens that, for tactical reasons
[1108]or reasons such as expense, a party will not fully litigate minor or
[1109]subsidiary issues. If the doctrine of abuse of process was extended
[1110]to cover such issues, parties to litigation might feel forced to
[1111]litigate points which they would prefer not to spend time and effort
[1112]33. I see no difficulty, however, in extending the doctrine of abuse
[1113]of process to a case where the facts are analogous to those in Bryant.
[1114]If, for practical purposes, a finding on an issue was determinative of
[1115]the outcome of proceedings, it would accord with the rationale of the
[1116]doctrine of abuse of process to preclude the relitigation of that
[1117]finding even though no issue estoppel arises. In civil cases, the
[1118]losing party will always have a right of appeal against the initial
[1119]ruling. In criminal cases, the accused will also have a right of
[1120]appeal against such a ruling, and in many jurisdictions the Crown has
[1121]the right to test adverse rulings that have resulted in the acquittal
[1122]34. The present case, however, is not analogous to Bryant. The third
[1123]record of interview was not before Phelan DCJ in 1989. It was not
[1124]the subject of any ruling in those proceedings. Its absence played no
[1125]part in the determination of any verdict in 1989. The admission into
[1126]evidence of the third record of interview therefore would not be an
[1127]35. I am also of the opinion that it would not be an abuse of process
[1128]for the Crown to tender the fourth record of interview. That record
[1129]was tendered before Phelan DCJ in support of the third and fourth
[1130]counts at the 1989 trial. Although his Honour rejected the tender
[1131]of the record of interview on the ground that it was not made
[1132]voluntarily, the appellant was convicted on those two counts by reason
[1133]of other evidence. In the present case, the Crown wishes to tender
[1134]the fourth record to prove admissions concerning the first, second,
[1135]third, fifth, sixth and eighth counts of the current indictment. None
[1136]of the charges in those counts were before Phelan DCJ If the
[1137]fourth record of interview is admitted into evidence in the current
[1138]proceedings, it will certainly conflict with the ruling of
[1139]Phelan DCJ that it was not made voluntarily. But the admission of
[1140]the fourth record of interview cannot undermine any acquittal of the
[1141]accused. It has nothing to say about the two counts on which the
[1142]accused was acquitted in 1989. Furthermore, for the reasons that I
[1143]have given in respect of the third record of interview, a ruling that
[1144]the fourth record was made voluntarily says nothing about the two
[1145]offences on which the accused was acquitted in 1989 and which were the
[1146]subject of the first and second records of interview.
[1147]36. If the fourth record of interview was admitted into evidence
[1148]at the proposed trial, all it could do in relation to the earlier
[1149]proceedings would be to confirm that the accused was guilty of the
[1150]two offences of which he was convicted in those proceedings. If the
[1151]tender of the fourth record of interview would be an abuse of process,
[1152]it would follow that, if an accused person obtains a favourable ruling
[1153]in a criminal trial, it is an abuse of process for the Crown to lead
[1154]any evidence in another trial to challenge that finding even if,
[1155]despite the ruling, the accused was convicted at the original trial.
[1156]That proposition goes beyond anything that has hitherto been regarded
[1157]as an abuse of process. Moreover, for the reasons that I have
[1158]given, both the requirements of justice and the need to ensure that
[1159]litigation is conducted as efficiently and as quickly as possible make
[1160]a powerful case for refusing to change the established rules.
[1161]37. It follows that the tender of the fourth record of interview at
[1162]the proposed trial would not be an abuse of process.
Parties
Applicant/Plaintiff:# Rogers
Respondent/Defendant:R \[1994\] HCA 42;
Legislation Cited (2)
Appeal Act 1912
Appeal Act 1912
Cases Cited (46)
Rogers v R [1994] HCA 42; (1994) 181 CLR 251; (1994) 123 ALR 417; (1994) 68 ALJR 688; (1994) 74 A Crim R 462 (28 September 1994)
[1978] HCA 39; (1978) 140 CLR 364 at 400-401.) that the doctrine of issue estoppel as
[1981] UKHL 13; (1982) AC 529; New Zealand: Reg. v. Davis (1982) 1 NZLR 584; Bryant v.
4. Williams v. Spautz ((5) [1992] HCA 34; (1992) 174 CLR 509.) is a case in point.
the question had been discussed: R. v. Wilkes ((15) [1948] HCA 22; (1948) 77 CLR 511
at 518-519.), Mraz v. The Queen (No.2) ((16) [1956] HCA 54; (1956) 96 CLR 62 at
68-69.) and Garrett v. The Queen ((17) [1977] HCA 67; (1977) 139 CLR 437 at